Protect Your Company with Performance Evaluation Documentation
Posted by Elizabeth Counts on Wed, Mar 10, 2010 @ 08:49 AM
Discrimination lawsuits by employees are on the rise and comprise about 33% of all claims in state and federal courts throughout the United States. Discrimination in the workplace is prohibited if an applicant or employee is discriminated against in the hiring, firing or terms and conditions of his/her employment because of his/her "protected class." "Protected classes" include race, religion, national origin, gender, age, disability and military status. Does this mean that a person who falls within a "protected class" has to be afforded preferential treatment? No - just equal treatment. With so many people falling within one or more categories of a "protected class," what is an employer to do? The key is education, training and documentation.
First, every company should have written policies that prohibit discrimination/sexual harassment/retaliation in the workplace. The policy needs to be signed by every employee within the organization.
Second, training seminars must be conducted on an annual basis for all employees. The purpose of these training seminars is to make each employee aware of his/her responsibilities and rights. Each employee has the right to work in an environment free of discrimination. Each employee also has the responsibility not to discriminate against other workers.
Third, documentation is critical for a number of reasons. Performance evaluations and warnings, if necessary, give the employee an opportunity to improve his/her performance. Those performance evaluations will also serve as evidence in the event that the company needs to defend itself against an employee who claims that he/she was terminated due to discrimination. An employer would argue that the termination was due to poor performance and not discrimination. The performance evaluations will be the best evidence of such poor performance. By the time a case goes to trial, the manager/supervisor who made the recommendation to terminate an employee may be long gone. Without the written performance evaluation, there will be no other evidence of poor performance. In addition, juries tend to believe the "written" more than they do the "spoken."
Discrimination lawsuits are so dangerous because of the cost, potentially unflattering publicity and the countless number of hours that need to be spent during litigation. Attorneys' fees for the company defending such a claim will typically be about $175,000. If the employee prevails in such a lawsuit, he/she will be entitled to his/her "reasonable" attorneys' fees which will usually be about $200,000. In addition, a prevailing employee may also be entitled to back pay damages, compensatory and punitive damages.
Thus, the key to avoiding discrimination lawsuits is education, training, and documentation.
By: Claire Saady, Esq. of HR Corporate Solutions
HR Corporate Solutions is dedicated toward working with companies to guarantee that they are in compliance with state and federal anti-discrimination laws. Claire works with companies to prepare their employee handbooks, policies/procedures, non-compete agreements and also provides training seminars for employees and executives.
She can be reached at clairesaady@hrcorporatesolutions.com or 813.909.7379.